Why Marijuana Charges Against Patients/caregivers Are Not Brought Under The Mmma

The reason that criminal charges alleging violations of the public health code (delivery of marihuana, possession with the intent to deliver marihuana, and manufacturing (growing) marihuana), are brought in these cases instead of violations of the MMMA, is that there are very few options or similar types of criminal charges available under the MMMA. The MMMA does not have any defined penalties, and as a few courts have ruled, a violation of the MMMA, is not a crime, instead it results in the patient or caregiver losing their “immunity” from arrest. So the MMMA does not state, if you have 13 plants when you can only have 12, you will be charged with a 1-year misdemeanor or a civil infraction resulting in a fine. There are only two specifically mentioned penalties within the MMMA which could be applied to a patient or their caregiver, which are:

SECTION 7(d): Fraudulent representation to a law enforcement official of any fact or circumstance relating to the medical use of marihuana to avoid arrest or prosecution shall be punishable by a fine of $500.00, which shall be in addition to any other penalties that may apply for making a false statement or for the use of marihuana other than use undertaken pursuant to this act.

I have never encountered a case where someone was charged with this violation. The Courts have interpreted the interplay of the MMMA and the existing Public Health code using the following reasoning: marihuana or medical marihuana is not legal as a result of the MMMA. Instead, the MMMA carved out limited exemptions or immunity for behavior that would otherwise be illegal or arrestable (the delivery of marihuana, possession with the intent to deliver marihuana, and manufacturing marihuana). In other words, the delivery of marihuana, possession with the intent to deliver marihuana and manufacturing marihuana are violations of the Public Health Code and only if the patient and or the caregiver is acting within the specific limitations (set forth in the immunity section of the act-Patients can possess no more than 2.5 ounces of usable marihuana and grow not more than 12 plants; Caregivers may possess the same for each patient they are caregiving for, with a limitation of not more than 5 patients) are they immune from this prosecution under the Public Health Code. There is only one crime created within the MMMA that I have ever seen a person charged for instead of the more common use of the Public Health Code.

Section 4(k): Any registered qualifying patient or registered primary caregiver who sells marihuana to someone who is not allowed to use marihuana for medical purposes under this act shall have his or her registry identification card revoked and is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both, in addition to any other penalties for the distribution of marihuana.

Other than the two specific statutory references above, the MMMA is silent as to punishment or penalty should a patient or caregiver find themselves (through the eyes of the law enforcement officers) outside the limitations of section 4 immunity (registry card protection).

333.26424 4. Protections for the Medical Use of Marihuana.

Sec. 4. (a) A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act, provided that the qualifying patient possesses an amount of marihuana that does not exceed 2.5 ounces of usable marihuana, and, if the qualifying patient has not specified that a primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility. Any incidental amount of seeds, stalks, and unusable roots shall also be allowed under state law and shall not be included in this amount. The privilege from arrest under this subsection applies only if the qualifying patient presents both his or her registry identification card and a valid driver license or government-issued identification card that bears a photographic image of the qualifying patient.

333.26424 4. Protections for the Medical Use of Marihuana.

Sec. 4.(b) A primary caregiver who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for assisting a qualifying patient to whom he or she is connected through the department's registration process with the medical use of marihuana in accordance with this act. The privilege from arrest under this subsection applies only if the primary caregiver presents both his or her registry identification card and a valid driver license or government-issued identification card that bears a photographic image of the primary caregiver. This subsection applies only if the primary caregiver possesses an amount of marihuana that does not exceed:

(1) 2.5 ounces of usable marihuana for each qualifying patient to whom he or she is connected through the department's registration process; and

(2) for each registered qualifying patient who has specified that the primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility; and

(3) any incidental amount of seeds, stalks, and unusable roots.

Another way to look at this would be that what the voter initiative MMMA is designed to protect persons from are arrests, prosecution and penalties of any kind or at least provide an affirmative defense to any charges involving marihuana. MCL 333.26428

The language on the ballot, the statute as written and read, and the interpretations of the Michigan Supreme Court of the statute all identify its purpose and intention to protect not punish people, generally speaking. There is an abundance of language throughout the MMMA supporting this principle, such as the fact that the medical marijuana patient/caregiver card can’t be used as probable cause of a crime or to search.

333.26426 (g) Possession of, or application for, a registry identification card shall not constitute probable cause or reasonable suspicion, nor shall it be used to support the search of the person or property of the person possessing or applying for the registry identification card, or otherwise subject the person or property of the person to inspection by any local, county or state governmental agency).

The most overlooked of which is in the preamble section; 333.26422 Findings, declaration.

Sec. 2. The people of the State of Michigan find and declare that:

(a) Modern medical research, including as found by the National Academy of Sciences' Institute of Medicine in a March 1999 report, has discovered beneficial uses for marihuana in treating or alleviating the pain, nausea, and other symptoms associated with a variety of debilitating medical conditions.

(b) Data from the Federal Bureau of Investigation Uniform Crime Reports and the Compendium of Federal Justice Statistics show that approximately 99 out of every 100 marihuana arrests in the United States are made under state law, rather than under federal law. Consequently, changing state law will have the practical effect of protecting from arrest the vast majority of seriously ill people who have a medical need to use marihuana.

This section of the MMMA clearly sets out the intent of the drafters of the law as wanting to try and significantly decrease the amount of arresting and prosecution for marijuana crimes, specifically protecting those who use marijuana for medical purposes.

In this case the two defendants were charged with conspiring to commit a legal act in an unlawful manner for failing to comply with

MCL 333.26242(f) (f) A physician shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by the Michigan board of medicine, the Michigan board of osteopathic medicine and surgery, or any other business or occupational or professional licensing board or bureau, solely for providing written certifications, in the course of a bona fide physician-patient relationship and after the physician has completed a full assessment of the qualifying patient's medical history, or for otherwise stating that, in the physician's professional opinion, a patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient's serious or debilitating medical condition or symptoms associated with the serious or debilitating medical condition, provided that nothing shall prevent a professional licensing board from sanctioning a physician for failing to properly evaluate a patient's medical condition or otherwise violating the standard of care for evaluating medical conditions.

In Butler, the defendant argued that she could not be convicted of conspiracy to commit a legal act in an unlawful manner for failing to comply with MCL 333.26424(f) because such conduct is not illegal. In essence, defendant is arguing on appeal, and argued in the trial court, that the allegations set forth in the information did not constitute the crime of conspiracy to commit a legal act in an illegal manner.

The Court of Appeals agreed.

“The Court held that “MCL 333.26424(f) does not prohibit physicians from issuing written certifications in the absence of a bona fide physician-patient, without conducting a full assessment of medical history, and when a “professional opinion” cannot be formulated. That is, this statute does not define any prohibited conduct, does not characterize any such conduct as constituting either a misdemeanor or felony, and does not provide for any punishment.” The conspiracy conviction of the defendant is vacated.

So one could conclude that the protective nature of the MMMA, as it was intended, is not a path for Law Enforcement to profit from charging those limited violations, and the Courts' interpretation of the act has analyzed it in such a way that the public health code is the only viable option to penalize persons who may be in a technical violation of section 4. Also I believe it is probably in law enforcement's best interest to stay away from alleging conceptual violations of the MMMA as crimes, because the act provides protections from not just arrests and prosecution but penalty of any kind, meaning forfeiture proceeds.

There is no forfeiture if the behavior falls within the purview of the MMMA section 4 or the affirmative defense, it is only via public health code violations that the forfeiture statute has its teeth.

We got a dismissal for the co-defendant in Shattuck case, Ginnifer Hency, where she allegedly went into the dispensary with the intentions of transferring 6 ounces of cannabis with someone because her patient wanted that particular strain for the patients serious and debilitating condition. Even though we disagreed with these facts, the Court found that this behavior, albeit not in strict compliance with the MMMA, was in fact de minimus, and thus not worthy or justifiable of criminal prosecution under the public health code. This is the only time a Court even contemplated such an option, but it really is a reasonable way to analyze some of these cases as non-criminal situations.

So that is the reason why there are not prosecutions pursuant to the MMMA, and instead charges are brought pursuant to the Public Health Code.

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